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Attorneys Obligations re Reaffs
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As we all know, you can find a written opinion to support any view. Until
faced with this directly, I intend to continue excluding reaffirmations from
my scope. Judge did not consider that being involved in reaffs might expose
the attorney to liability for incorrectly assessing the client's ability to
repay. I don't think lawyers have to accept this risk.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
The post was migrated from Yahoo.
Right. I just had a carpenter in my office. He has a truck and a
$570 monthly payment. He is behind on the first and second on his
house. His business sucks. He will die before he will give up the
truck. How in the world can I say it is or is not a hardship?
wrote:
>
> The holding would be consistent with the position of the Hon.
Naugle of
> Riverside (retired), but for which he never wrote a published
opinion (to my
> knowledge).
>
> The rationale offered below is flawed: One can give advice re:
> reaffirmations without representation, the same way we advise about
> fraudulent transfers and recent cash advances, for example, while
still
> excluding litigation springing from each of these from our
services.
>
>
> -----Original Message-----
Behalf Of
> Jon Hayes
> Sent: Monday, February 16, 2009 9:25 AM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Attorneys Obligations re Reaffs
>
> I don't normally read judges' opinions from Oklahoma but this one
caught my
> eye.
>
> In re Minardi --- B.R. ---, 2009 WL 210718 (Bkrtcy, N.D. Oklahoma
> 2009)
>
> Issue: "The issue before the Court today is whether counsel may
> exclude the negotiation of and/or advice concerning reaffirmation
agreements
> from the package of services rendered to a Chapter 7
> debtor."
>
> Holding: No.
>
> The chapter 7 debtor sought approval of a reaffirmation agreement
on a truck
> he owned that he negotiated without his attorney. The attorney
retainer
> agreement and the 2016 statement specifically
> excluded reaffirmations. The debtor paid the attorney $1,000.
The
> bankruptcy court set the matter for hearing. The attorney
appeared at the
> hearing and told the court that explained the "legal effect and
> consequences" of the reaffirmation but did not assist the debtor in
> negotiating the agreement. The debtor then advised the court that
he
> understood and accepted the exclusion from the services. The
attorney
> continues to represent the debtor in another action before the
court.
>
> The court denied the requested reaffirmation.
>
> "After careful consideration, the Court concludes that [the
attorney's]
> attempt to limit his services to exclude negotiation of
reaffirmation
> agreements is an impermissible limitation on his representation of
Debtor.
> The Court bases its conclusion on two foundations. First, and most
> importantly, the decision to reaffirm an otherwise dischargeable
debt plays
> a critical role in the bankruptcy process-so critical, that
assistance with
> the decision must be counted among the necessary services that
make up
> competent representation of a Chapter 7 debtor. Second, the Code
lays the
> responsibility for advising a debtor about the reaffirmation
process and
> evaluating the effect of each agreement at the feet of debtors'
> counsel. The Court will not relieve counsel of this
responsibility.
>
> One of the safeguards provided under 524(c) is that where a
debtor is
> represented by an attorney, he or she must evaluate whether an
agreement to
> reaffirm a debt will impose an undue hardship on the debtor and
inform the
> court of that assessment.FN27 If the attorney determines that no
such
> hardship is imposed on the debtor, then he or she should sign the
statement
> set out in Part C of the official reaffirmation agreement
form.FN28 Where
> the attorney is unable to endorse that statement, the agreement
will not be
> enforceable.
>
> This Court will not allow counsel to offer services in a piecemeal
fashion
> that leaves debtors vulnerable and unrepresented at the exact
moment they
> need professional legal advice, especially for routine and fully
anticipated
> matters. Let there be no doubt: in the eyes of this judge,
counsel for a
> debtor may not exclude advice regarding and negotiation of
reaffirmation
> agreements from the scope of services provided to a Chapter 7
debtor.
> Counsel that are unwilling to undertake and follow through on such
duties
> should not accept employment in a Chapter 7 case, or if currently
employed,
> should withdraw from all further representation of the debtor."
>
>
>
>
>
>
>
>
> ------------------------------------
>
> Yahoo! Groups Links
>
The post was migrated from Yahoo.
The holding would be consistent with the position of the Hon. Naugle of
Riverside (retired), but for which he never wrote a published opinion (to my
knowledge).
The rationale offered below is flawed: One can give advice re:
reaffirmations without representation, the same way we advise about
fraudulent transfers and recent cash advances, for example, while still
excluding litigation springing from each of these from our services.
Jon Hayes
Sent: Monday, February 16, 2009 9:25 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Attorneys Obligations re Reaffs
I don't normally read judges' opinions from Oklahoma but this one caught my
eye.
In re Minardi --- B.R. ---, 2009 WL 210718 (Bkrtcy, N.D. Oklahoma
2009)
Issue: "The issue before the Court today is whether counsel may
exclude the negotiation of and/or advice concerning reaffirmation agreements
from the package of services rendered to a Chapter 7
debtor."
Holding: No.
The chapter 7 debtor sought approval of a reaffirmation agreement on a truck
he owned that he negotiated without his attorney. The attorney retainer
agreement and the 2016 statement specifically
excluded reaffirmations. The debtor paid the attorney $1,000. The
bankruptcy court set the matter for hearing. The attorney appeared at the
hearing and told the court that explained the "legal effect and
consequences" of the reaffirmation but did not assist the debtor in
negotiating the agreement. The debtor then advised the court that he
understood and accepted the exclusion from the services. The attorney
continues to represent the debtor in another action before the court.
The court denied the requested reaffirmation.
"After careful consideration, the Court concludes that [the attorney's]
attempt to limit his services to exclude negotiation of reaffirmation
agreements is an impermissible limitation on his representation of Debtor.
The Court bases its conclusion on two foundations. First, and most
importantly, the decision to reaffirm an otherwise dischargeable debt plays
a critical role in the bankruptcy process-so critical, that assistance with
the decision must be counted among the necessary services that make up
competent representation of a Chapter 7 debtor. Second, the Code lays the
responsibility for advising a debtor about the reaffirmation process and
evaluating the effect of each agreement at the feet of debtors'
counsel. The Court will not relieve counsel of this responsibility.
One of the safeguards provided under 524(c) is that where a debtor is
represented by an attorney, he or she must evaluate whether an agreement to
reaffirm a debt will impose an undue hardship on the debtor and inform the
court of that assessment.FN27 If the attorney determines that no such
hardship is imposed on the debtor, then he or she should sign the statement
set out in Part C of the official reaffirmation agreement form.FN28 Where
the attorney is unable to endorse that statement, the agreement will not be
enforceable.
This Court will not allow counsel to offer services in a piecemeal fashion
that leaves debtors vulnerable and unrepresented at the exact moment they
need professional legal advice, especially for routine and fully anticipated
matters. Let there be no doubt: in the eyes of this judge, counsel for a
debtor may not exclude advice regarding and negotiation of reaffirmation
agreements from the scope of services provided to a Chapter 7 debtor.
Counsel that are unwilling to undertake and follow through on such duties
should not accept employment in a Chapter 7 case, or if currently employed,
should withdraw from all further representation of the debtor."
Yahoo! Groups Links
The post was migrated from Yahoo.
I don't normally read judges' opinions from Oklahoma but this one
caught my eye.
In re Minardi --- B.R. ---, 2009 WL 210718 (Bkrtcy, N.D. Oklahoma
2009)
Issue: "The issue before the Court today is whether counsel may
exclude the negotiation of and/or advice concerning reaffirmation
agreements from the package of services rendered to a Chapter 7
debtor."
Holding: No.
The chapter 7 debtor sought approval of a reaffirmation agreement on
a truck he owned that he negotiated without his attorney. The
attorney retainer agreement and the 2016 statement specifically
excluded reaffirmations. The debtor paid the attorney $1,000. The
bankruptcy court set the matter for hearing. The attorney appeared
at the hearing and told the court that explained the "legal effect
and consequences" of the reaffirmation but did not assist the debtor
in negotiating the agreement. The debtor then advised the court that
he understood and accepted the exclusion from the services. The
attorney continues to represent the debtor in another action before
the court.
The court denied the requested reaffirmation.
"After careful consideration, the Court concludes that [the
attorney's] attempt to limit his services to exclude negotiation of
reaffirmation agreements is an impermissible limitation on his
representation of Debtor. The Court bases its conclusion on two
foundations. First, and most importantly, the decision to reaffirm
an otherwise dischargeable debt plays a critical role in the
bankruptcy process-so critical, that assistance with the decision
must be counted among the necessary services that make up competent
representation of a Chapter 7 debtor. Second, the Code lays the
responsibility for advising a debtor about the reaffirmation process
and evaluating the effect of each agreement at the feet of debtors'
counsel. The Court will not relieve counsel of this responsibility.
One of the safeguards provided under 524(c) is that where a debtor
is represented by an attorney, he or she must evaluate whether an
agreement to reaffirm a debt will impose an undue hardship on the
debtor and inform the court of that assessment.FN27 If the attorney
determines that no such hardship is imposed on the debtor, then he or
she should sign the statement set out in Part C of the official
reaffirmation agreement form.FN28 Where the attorney is unable to
endorse that statement, the agreement will not be enforceable.
This Court will not allow counsel to offer services in a piecemeal
fashion that leaves debtors vulnerable and unrepresented at the exact
moment they need professional legal advice, especially for routine
and fully anticipated matters. Let there be no doubt: in the eyes of
this judge, counsel for a debtor may not exclude advice regarding and
negotiation of reaffirmation agreements from the scope of services
provided to a Chapter 7 debtor. Counsel that are unwilling to
undertake and follow through on such duties should not accept
employment in a Chapter 7 case, or if currently employed, should
withdraw from all further representation of the debtor."
The post was migrated from Yahoo.